Compassion in Dying v. Washington

KLEINFELD, Circuit Judge,

dissenting:

I join in Judge Beezer’s dissenting opinion, with two qualifications.

First, I doubt that there is a constitutional right to commit suicide. “[N]o ‘substantive due process’ claim can be maintained unless the claimant demonstrates that the state has deprived him of a right historically and traditionally protected against state interference.” Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 294, 110 S.Ct. 2841, 2860, 111 L.Ed.2d 224 (1990) (Scalia, J. concurring). Suicide has not been traditionally or historically protected as a right:

American law has always accorded the State the power to prevent, by force if necessary, suicide — including suicide by refusing to take appropriate measures necessary to preserve one’s life; the point at which life becomes “worthless,” and the point at which the means necessary to preserve it become “extraordinary” or “inappropriate” are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random *858from the Kansas City telephone directory; ... It is quite impossible (because the Constitution says nothing about the matter) that [Missouri’s] citizens will decide upon a line less lawful than the one we would choose; and it is unlikely (because we know no more about “life-and-death” than they do) that they will decide upon a line less reasonable.

Cruzan, 497 U.S. at 293, 110 S.Ct. at 2859 (Scalia, J. concurring).

That a question is important does not imply that it is constitutional. The Founding Fathers did not establish the United States as a democratic republic so that elected officials would decide trivia, while all great questions would be decided by the judiciary. The majority treats the remark in Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), about “the most intimate and personal choices a person may make ... the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” id. at 851, 112 S.Ct. at 2807, as a basis for constitutionalizing any really important personal decision. That an issue is important does not mean that the people, through their democratically elected representatives, do not have the power to decide it. One might suppose that the general rule in a democratic republic would be the opposite, with a few exceptions. Judge Beezer’s view, that the statement is made in the sui generis context of abortion law, is sounder than the majority’s. There is a difficulty with expanding the quoted language from Casey beyond abortion, in the face of Bowers v. Hardwick, 478 U.S. 186, 190-93, 106 S.Ct. 2841, 2844-45, 92 L.Ed.2d 140 (1986), and we lack authority to overrule that decision of a higher court.

We do not need, however, to decide whether suicide is a constitutionally protected right. As Judge Beezer explains, even if it is, the State of Washington has a rational basis for preventing assisted suicide. It is not necessary to agree with Judge Beezer, that there is a nonfundamental constitutionally protected right to commit suicide, or with Judge Fernandez, that there is not. Either way, the district court erred, for the reasons stated by Judge Beezer.

Second, the majority says there is “little, if any, difference for constitutional or ethical purposes” between providing pain killing medication for the purpose of relieving pain, knowing that it will at some dosage cause death, and providing medication for the sole purpose of causing death. I would go further than Judge Beezer’s characterization of this as a “gray area.” I think the majority’s proposition is exactly wrong. When General Eisenhower ordered American soldiers onto the beaches of Normandy, he knew that he was sending many American soldiers to certain death, despite his best efforts to minimize casualties. His purpose, though, was to liberate the beaches, liberate France, and liberate Europe from the Nazis. The majority’s theory of ethics would imply that this purpose was legally and ethically indistinguishable from a purpose of killing American soldiers. Knowledge of an undesired consequence does not imply that the actor intends that consequence. A physician who administers pain medication with the purpose of relieving pain, doing his best to avert death, is no murderer, despite his knowledge that as the necessary dosage rises, it will produce the undesired consequence of death.

Justice Holmes was the leading advocate of his time for the general proposition that “[a]cts should be judged by their tendency under the known circumstances, not by the actual intent which accompanies them.” Holmes, The Common Law 54 (Harvard Univ. Press 1967) (1881). When applying this general principle to a specific ease, however, Holmes qualified it, conceding that “when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed.” Abrams v. United States, 250 U.S. 616, 627, 40 S.Ct. 17, 21, 63 L.Ed. 1173 (1919) (Holmes J. dissenting). There is no novelty to the distinction between intended purpose and foreseen but undesired consequence. “It is deliberate purpose that constitutes wickedness and criminal guilt, and such names as ‘outrage’ and ‘theft’ imply deliberate purpose as well as the mere action.” Aristotle, Rhetoric, book I, chap. 13, at 79 (Roberts trans. 1954). Jurors can no longer be instructed that “the law presumes that a person intends the ordinary consequences of his voluntary acts,” in a case requiring purposeful conduct, because the instruction presumes away the prosecution’s burden of proving criminal in*859tent. Sandstrom v. Montana, 442 U.S. 510, 513, 99 S.Ct. 2450, 2453, 61 L.Ed.2d 39 (1979).

It is very difficult to judge what ought to be allowed in the care of terminally ill patients. The Constitution does not speak to the issue. People of varying views, including people with terrible illnesses and their relatives, physicians, and clergy, can, through democratic institutions, obtain enlightened compromises of the complex and conflicting considerations. They can do so at least as well as we judges can, and nothing in the Constitution prevents them from making the law.